1419007 (Migration)

[2016] AATA 4789

1419007 (Migration) [2016] AATA 4789 (2 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Liyu Lin
Mr Heyan Lin
Mr Yuguang Lin
Mr Yuhuang Lin

CASE NUMBER:  1419007

DIBP REFERENCE(S):  CLF2014/139755 CLF2014/69552 CLF2014/69553

MEMBER:Antonio Dronjic

DATE:2 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the application for Business Skills (Residence) (Class DF) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass State/Territory Sponsored Business Owner (Residence) visa:

·cl.892.212 (b) and (c) of Schedule 2 to the Regulations;

·The tribunal does not have jurisdiction in respect of the second and the third named applicants.

Statement made on 02 December 2016 at 1:19pm

CATCHWORDS

Migration – Business Skills (Residence) (Class DF) visa – Subclass State/Territory Sponsored Business Owner (Residence) visa – Subclass 892 – No exceptional circumstances determined by regional authority – Business and personal assets – Net value – Lawfully acquired

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 892.212 (b) (c)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 November 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 May 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl. 892.212 of Schedule 2 to the Migration Regulations (the Regulations).

3. According to the primary decision record submitted by the applicants with their review applications, there was no claim or evidence before the delegate that the appropriate regional authority (State Government of Victoria) has determined the existence of exceptional circumstances. Therefore, the applicants were required to meet at last two of the three requirements prescribed in Cl.892.212. There was no evidence or claims before the delegate relevant to cl.892.212 (a).

4. The relevant period for the purposes of cl.892.212 is from 12 May 2013 to 13 May 2014 (12 months ending immediately before the application is made). The nominating business is Vicher Australia Pty Ltd. This business was registered on 29 June 2011 and the applicant is the sole director and shareholder. In April 2014, Vicher Australia purchased an existing business, the Tasty Roster Fitzroy, for $278,000.

5. According to the primary decision, the applicant was claiming that she advanced a directors’ loan to her business of $283,760. The applicant claimed that some of the funds were brought to Australia in cash. The delegate was not satisfied on the evidence that the funds came from the applicant.

6. The applicants lodged the review applications with this tribunal on 20 November 2014.

7. On 6 September 2016, the applicants’ representative submitted the following relevant documents:

   ·Financial Statements for Vicher Australia Pty Ltd for the year ending on 31 March 2014;

   ·Financial Statements for Vicher Australia Pty Ltd for the year ending 30 June 2016;

   ·Directors’ loan ledger as at 31 March 2014;

   ·Directors’ loan ledger as at 30 June 2016;

   ·Bundle of company’s bank statements;

   ·Ms Lin’s personal bank statements;

   ·Statutory Declaration of Ms Lin explaining the deposit of $9,900 on 13 March 2012;

   ·Statutory Declaration of Mr Lin explaining the deposits of $9,900 made on 12^th and 17^th April 2012;

   ·The applicants’ calculation of net business and personal assets as at 31 March 2013; 31 March 2014 and 30 June 2016. The applicants’ representative submitted that the applicants’ combined business and personal assets as at 31 March 2013 were $292,189 and as at 31 March 2014, $303,319.

8. On 19 September 2016, the tribunal wrote to the applicants inviting their comments on validity of the review application made by Mr Heyan Lin and Mr Yuguang Lin. According to the departmental movement records, the second and the third named visa applicants were not physically present in the migration zone at the time of the review application. On 20 September 2016, the applicants’ representative conceded in writing that the tribunal has no jurisdiction in respect of the second and the third named visa applicants.

9. On 20 September 2016, the tribunal wrote to the applicants to advice that the tribunal was unable to make a favourable decision on the material before it and invited the applicants to attend a tribunal hearing scheduled for 15 November 2016. With this letter, the tribunal invited the applicants to provide certified copy of the directors’ loan claimed to be advanced by Ms Lin to Vicher Australia.

10. On 26 October 2016, the applicants’ representative submitted the following documents:

    ·Audited Financial Statements for Vicher Australia Pty Ltd for the 2012/13 and 2013/14 financial years;

    ·Copy contract of sale of business (concerning the purchase of Tasty Roaster Fitzroy);

    ·Bundle of company’s bank statements held at Bank of Melbourne; and

    ·Directors’ loan ledger as at 30 June 2016.

11. The applicants appeared before the tribunal on 15 November 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by registered migration agent who attended the tribunal hearing.

12. The tribunal began the hearing by explaining its role and the purpose of the tribunal hearing. The tribunal informed the applicants that the reason why the delegate refused to grant the applicants visas was because that delegate was satisfied that the first named applicant met cl.892.212 of Schedule 2 to the Regulations. The first named applicant confirmed that she was having no difficulty in understanding the interpreter.

13. The applicant is 51 years of age, married national of China. She first came to Australia on 16 February 2010 as a holder of a subclass 163 visa. Her husband, who was the primary applicant for subclass 163 visa, and her older son live in China. Her younger son lives with the applicant in Australia.

14. In China, Ms Lin completed grade 3 of primary school and has been working at her husband’s business during the period of 3-4 years prior to arriving in Australia. Her monthly wages were RMB3, 500 per month.

15. Her husband owns 25% shares in the Chinese business set up some 10 years ago. Initially the business was set up in Shanghai and acted as an agent for wall paper manufacturers from Japan. Approximately six years ago, the business commenced manufacturing wall papers in the rural area of China. According to Ms Lin’s recollection, the business was making approximately one million RMB per year in 2009 and 2010.

16. Ms Lin did not know how much money she and her husband had in their savings accounts prior to arriving in Australia. She stated that the accounts were held by her husband. She believes that the savings were held at Agricultural Bank of China.

17. She confirmed that Vicher Australia Pty Ltd was registered in June 2011. Ms Lin is the only shareholder and director of the business. The company was dormant until April 2012 when it acquired an existing Australian business ‘The Tasty Roster’ located in Fitzroy. The business is essentially a take away shop. The business was purchased for $270,000 (according to the copy of the sale of business contract). The applicant claims that she paid $278,500 and that this figure included the existing stock). With her visa application, the applicant submitted to the department a copy of the bank cheque issued by the Bank of Melbourne on 17 April 2012 for the amount of $278,500.

18. I asked Ms Lin how she and her husband transferred this amount of money from China. She stated that $240,000 was transferred from to their bank accounts in China to NAB account in Australia. She stated that most of the funds were transferred from Agricultural Bank of China and some of the funds were transferred from her husband’s brother’s bank account from Honk Kong. She stated that Chinese citizens can only transfer the equivalent of USA$50,000 per year.

19. I asked during which period she and her husband transferred money from China. She stated that she is not sure. I adjourned the hearing for 15 minutes in order to give the applicant time to consult with her adviser.

20. The hearing resumed and in her evidence, the applicant stated that she advanced a directors’ loan to Vicher Australia Pty Ltd in the amount of $283,460. I asked and she answered that she never signed any written loan agreement with the company as both the money and the company belong to her.

21. I indicated that, based on the evidence before me, I am not satisfied that it was her and her husband’s money she claims to have transferred from China to Australia. I explained that in order to meet the requirements of cl.892.212 she need to provide documentary evidence that the claimed funds have been lawfully acquired by her and her husband.

22. I requested that following documentary evidence be provided on or before 29 November 2016:

    ·Bank statements from China (for 2009 and 2010) evidencing savings and income generated by the applicant and her husband;

    ·Other evidence of applicant’s and her husband’s earnings prior to arriving in Australia in February 2010;

    ·Bank statements from Chinese bank accounts (with translations) evidencing transfers of funds to the applicant’s NAB account in Australia;

    ·Bank statements from NAB Australia, evidencing the receipt of the funds transferred from China by the applicant and her husband.

23. On 29 November 2016, the applicant’s representative submitted the following documents:

    ·The applicant’s Statutory Declaration dated 28 November 2016, stating that funds transferred to Australia were lawfully acquired by her and her husband from their salaries and bonuses distributed from their companies in China throughout the years. She stated that the following transactions took place during the relevant period totalling the amount AUD 247,000 (money transferred from overseas into applicant’s personal bank account in Australia):

    11 August 2011 - Deposited AUD 43,292 into NAB bank account

    Lin Heyan (husband) in China (RMB 670,000) and Juguang Lin (son) in China received RMB 670,000 and used RMB 288,564.19 for currency exchange of AUD 43,300. Liyu Lin's NAB bank account in Australia received AUD 43,292 after bank charges. Annexed are copies of relevant bank statements to show trace of funds transfer from overseas into Australia and marked "B".

    11 August 2011 - Deposited AUD 45,992 into NAB bank account

    Lin Heyan in China (RMB 670,000) and Juguang Lin in China received RMB670,000 and transferred RMB 306,967.80 to Yuhua Li's account (received RMB 306,557.80 and convert into AUD 46,000). Liyu Lin's NAB bank account received AUD 45,992 after bank charges. Annexed are copies of relevant bank statements to show trace of funds transfer from overseas into Australia and marked "C".

    5 December 2012 - Deposited AUD 47,692 into NAB bank account

    Company bonus from China (RMB 1, 000,000). Lin Hegui (applicant’s brother in law) from China transferred RMB 295,000 to Hongqing Wu’s bank account (Hegui’s wife). Ms Hongqing Wu received RMB 295,000 and withdraw full amount in cash. She then gave the money to Shaoming Chen who deposited money to his/her bank account and converted funds into AUD 47,700 in three transactions). Liyu Lin's NAB bank account received AUD 47,692 after deducting bank charges.

    15 December 2012 - Deposited AUD 49,977.14 into NAB bank account

    Company bonus from China (RMB 1, 000,000). Lin Hegui transferred from his Hong Kong Bank account AUD 50,000 to Liyu Lin's NAB bank account (received AUD 49,977.14 after bank charges).

    16 December 2011 - Deposited AUD 59,977.01 into NAB bank account

    Company bonus from China (RMB 1, 000,000). Lin Hegui transferred from his Hong Kong Bank account AUD 60,000 to Liyu Lin's NAB bank account. Liyu Lin's NAB bank account received AUD 59,977.01 after bank charges. Annexed are copies of statement regarding Heyan Lin's bonus, relevant bank statements to show trace of funds transfer from overseas into Australia and marked "D".

    ·Unsigned letter (with translation) titled ‘Proof’  dated 22 November 2016, issued by the financial department of Chinese companies (Shanghai Wholly Decorative Materials Co Ltd;  Shanghai Vicher Wallcovering Materials Co Ltd and Shanghai Wangyu Decorative Materials Co Ltd) stating that Mr Lin Hegui is a General Manager of all three companies; that Mr Lin Heyan (the visa applicant’s husband) is Deputy General Manager of these companies; that many of the company’s customers paid money directly into Mr Lin Hegui’s personal bank account and not the company account and for that reason business income or profit distribution was transferred from Mr Lin Hegui’s personal account into account as directed by Mr Lin Heyan. It was further stated that in October 2011 ‘the Company’ gave the shareholder Lin Heyan (including Lin Liyu) a bonus of one million RMB;

    ·Copy (with translation) of Shareholder Meeting Resolution from Shanghai Wholly Decorative Materials Co Ltd, dated 20 September 2011 as evidence that Mr Lin Heyan (including Lin Liyu) was allocated a bonus of one million RMB;

    ·Copy (with translation) of Shanghai Wholly Decorative Materials Co Ltd business licence;

    ·Copy (with translation) of Shanghai Wholly Decorative Materials Co Ltd Constitution listing Mr Lin Heyan as a shareholder who invested RMB250,000 into this Company on 6 January 2009;

    ·Copy (with translation) of Shanghai Wangyu Decorative Materials Co Ltd (Wangyu) business licence;

    ·Copy (with translation) Wangyu’s Constitution listing Ms Lin Liu as a shareholder who invested RMB400,000 into this Company;

    ·Copy (with translation) of special credit transfer voucher dated 15 July 2009, as evidence that Ms Lin transferred RMB400,000 from her account held  at China Construction Bank to Wangyu’s bank account;

    ·Copy (with translation) of Shanghai Vicher Wallcovering Co Ltd (Vicher ) business licence;

    ·Copy (with translation) of Vicher’s Constitution listing Mr Lin Heyan as a shareholder who invested RMB800,000 into this Company;

    ·Copy (with translation) of Deposit Slip as evidence that Mr Lin Heyan invested RMB800,000 into Vicher on 15 June 2011;

    ·Copy (with translation) of document headed ‘Proof of Income’ issued by Shanghai Wholly Decorative Materials Co Ltd on 22 November 2016 as evidence of Mr Lin Heyan’s income in 2009 (RMB870,000) and 2010 (RMB790,000);

    ·Copy (with translation) of document headed ‘Proof of Income’ issued by Shanghai Wangyu Decorative Materials on 22 November 2016 as evidence of Ms Lin’s income in 2009 (RMB41,000) and 2010 (RMB92,000);

    ·Bundle of what appears to be transaction records from Bank of Communications not containing the name of the account holder;

    ·Bundle of what appears to be transaction records from Agricultural Bank of China concerning the account held by Mr Lin Heyan (4 pages);

    ·Bundle of what appears to be transaction records from Bank of Communications concerning the account held by Ms Lin (from 2008 to 2010);

    ·Copy (with translation) of Retail Customer Transaction Details concerning the account held by Mr Lin Heyan evidencing transaction of RMB 670,000 on 10 August 2011;

    ·Copy (with translation) of New Line Deposit Historical Transaction Details concerning the account held by Mr Lin Yuguang (the visa applicant’s son) evidencing transfer of AUD43,3000 to his mother’s account in Australia together with the copy of the application for funds transfer (overseas) and NAB statement evidencing the deposit of $43,292 made on 11 August 2011;

    ·Copy (with translation) of New Line Deposit Historical Transaction Details concerning the account held by LI Yuhua evidencing transfer of AUD46,000 to the visa applicant’s account in Australia together with the copy of the application for funds transfer (overseas) and NAB statement evidencing the deposit of $45,992 made on 11 August 2011;

    ·Statement (with translation and supporting documentary evidence) of Mr Lin Hegui concerning the payment of bonus to visa applicant and her husband of one million RMB. Mr Hegui stated that he transferred RMB295, 000 from his account held at Bank of Communications to Ms Wu Hongqing’s bank of Communications bank card. Ms Wu Hongqing than withdrew this money in cash and deposited to Chen Shaoming’ s Bank of China Account to be converted to Australia dollars and transferred to Ms Lin. The total amount converted (in three separate transactions) was AUD47, 700 and this amount was transferred to Ms Lin’s account in Australia on 2 December 2011. He further wrote that on 14 December 2011 Lin Hegui transferred $50,000 from his Hong Kong Bank of China to the visa applicant’s account in Australia and that on 15 December 2011; Lin Hegui transferred $60,000 from his Hong Kong Bank of China to the visa applicant’s account in Australia. The total amount transferred was AUD157, 700 which was approximately one million RMB.

24. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the applicant satisfies cl. 892.212 of Schedule 2 to the Regulations. This regulation requires the applicant to satisfy two out of the three criteria in subclauses (a), (b) and (c) unless the appropriate regional authority (State Government of Victoria) has determined that there are exceptional circumstances. There is no evidence before the tribunal that the appropriate regional authority made such determination.

26. The applicant never claimed or presented relevant evidence related to employment of Australian citizens, Australian permanent residents or New Zealand passport holders. Accordingly, based on the evidence before me I am not satisfied that the applicant meets cl.892.212 (a).

27. Cl.892.212(b) prescribes that the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

    (i)      have a net value of at least AUD250 000; and

    (ii)      had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and

    (iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

28. Cl.892.212(c) prescribes that the assets owned by the applicant, the applicant’s or , or the applicant and his or her spouse or de facto partner together, in the or main businesses in Australia:

    (i)      have a net value of at least AUD75 000; and

    (ii)      had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and

    (iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

29. It follows that, if the applicant is able to substantiate her claim of having more than AUD250,000 in business assets in Australia throughout the period of 12 months ending immediately before the application is made, she would be able to meet both the requirements of cl.892.212(b) (i) and (ii) and cl.892.212(c) (i) and (ii).

30. Based on the evidence before me, I am satisfied that in April 2012 the company acquired an existing Australian business ‘The Tasty Roster’ (take away shop) located in Fitzroy. Based on the sale of business contract, I am satisfied that Tasty Roster was purchased for $270,000. I accept that the applicant paid the amount of $278,500 and that this figure included the existing stock. This finding is supported by documentary evidence in the form of a bank cheque issued by the Bank of Melbourne on 17 April 2012 for the amount of $278,500.

1. The applicant’s claims that she had advanced a directors’ loan to Vicher Australia Pty Ltd of $283,460 as of 30 June 2013 and $275,889 as of 30 June 2014. This claim is supported by company’s audited financial statements for 2013 and 2014 financial years; applicant’s Statutory Declaration of 24 October 2016 and copy directors’ loan ledger (tribunal folios 257 and 258) provided to the tribunal with the review application.

2. Based on the evidence before me I am satisfied that the applicant had a net value of at least AUD75 000 in the throughout the period of 12 months ending immediately before the application is made. It follows that the applicant satisfies both cl.892.212(c) (i) and (ii).

3. Based on the same evidence, I am satisfied that the business and personal assets in Australia of the applicant and her spouse have a net value of at least AUD250 000 and had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made. It follows that the applicant satisfies both cl.892.212 (b) (i) and (ii).

4. The remaining issue is whether these funds have been lawfully acquired by the applicant, the applicant’s spouse or the applicant and her spouse together.

5. The applicant gave evidence that she and her husband have business interest in three companies operated in China. She stated that her husband’s income from overseas business in 2009 was approximately RMB870, 000 (or AUD170, 600) and in 2010 approximately RMB790, 000 (AUD154, 900). This claim was supported by document headed ‘Proof of Income’ issued by Shanghai Wholly Decorative Materials Co Ltd on 22 November 2016.

6. In addition, the applicant provided documentary evidence that her income at Shanghai Wangyu Decorative Materials in 2009 was RMB41, 000 (approximately AUD8, 000) and in 2010 RMB92, 000 (approximately AUD18, 000).

7. The applicant provided documentary evidence supporting her claim that in October 2011 she and her husband received a bonus of one million RMB (approximately AUD195, 729).

8. There is no evidence before me to indicate that these assets have been unlawfully acquired by the applicant and her spouse. Accordingly, the applicant meets both cl.892.212 (b) (iii) and cl.892.212 (c) (iii).

9. I acknowledge the difficulties Chinese citizens experience in transferring the funds from China to Australia. I accept the submissions that Chinese citizens are only permitted to transfer USD50, 000 out of the country each year. For that reason, many applicants are using unorthodox ways of transferring funds to Australia.

10. I note that the business in China is conducted in a substantially different manner than in Australia. I observe that many Chinese nationals applying for an Australian visa are finding it difficult to distinguish between their personal assets and the assets owned by their overseas businesses.

11. There is evidence in this case that many of the Chinese company’s customers paid money directly into Mr Lin Hegui’s personal bank account (applicant’s brother in law) and not the company accounts. This practice would not be permitted in Australia. However, there is no evidence before me that these funds were unlawfully acquired in China by the applicant or her husband.

12. There is evidence in this case that the income or profit distribution was transferred from Mr Lin Hegui’s personal account into any account as directed by the applicant’s husband, Mr Lin Heyan. I share the delegates’ concerns that some of the funds transferred to Australia came from the accounts owned and operated by people other than the visa applicant and her husband. These concerns are alleviated by the documentary evidence provided by the applicant concerning the ‘money trail’.

    Tribunal’s lack of jurisdiction in respect of the second and the third named applicants

13. Based on the departmental records the tribunal finds that the second and the third named applicants were not physically present in the migration zone at the time of the review application or at the time of delegate’s decision.

14. As the tribunal reviewable decision is covered by s 338(7A), an application for review may only be made by a non-citizen who is physically present in the migration zone at the time the delegate’s decision was made and at the time when the application for review is made as per s.347(3A) of the Act. Accordingly the tribunal has no jurisdiction to review the application in respect of the second and the third named applicants.

    DECISION

15. The tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass State/Territory Sponsored Business Owner (Residence) visa:

    ·cl.892.212 (b) and (c) of Schedule 2 to the Regulations.

    ·The tribunal does not have jurisdiction in respect of the second and the third named applicants.

    Antonio Dronjic
    Member